Mathew v. State of Kerala — 1985 DIGILAW 441 (MAD)

Order: 1. The sole accused in C.C.No.214 of 1982 (now numbered as L.P.No.4 of 1983) before the Additional Judicial First Class Magistrate, Muvattupuzha is the petitioner. The petition was filed under section 482 of the Criminal Procedure Code under the following circumstances. 2. From April 1982 onwards the petitioner is in Switzerland. Before going to Switzerland he happened to issue a cheque in favour of one George for Rs.20,000/-or so. That cheque happened to be dishonoured when presented. George filed a complaint before the Judicial First Class Magistrate, Muvattupuzha. The Magistrate forwarded the same to the Police for investigation under section 156(3) of the Criminal Procedure Code. After investigation the above case was charge-sheeted against the petitioner for an offence punishable under section 420 of the Indian Penal Code. 3. When summons was issued the petitioner was abroad and therefore, it was returned unserved. Thereafter warrant was issued from Court. That also met with the same fate. The Court informed the Passport authorities, resulting in the passport of the petitioner being impounded. Petitioner says that he came to know of the pendency of the case itself only after his passport was impounded as requisitioned by the Court. 4. On getting the above information petitioner paid the entire amount due to Mr. George and had the matter settled with him. Since the passport remains impounded he is not in a position to come to India. He engaged a Counsel and on 28.9.1985 filed the following petitions before Court through his Counsel: 1. Petition for exemption from personal appearance and permission to appear through pleader; 2. Petition for advancing the posting of the case; 3. Petition requesting that warrant may be recalled; 4. Petition for permission to compound the offences; 5. A joint petition along with the defacto complainant compounding the offence. The Magistrate rejected all the petitions observing that they cannot be favourably considered without the petitioner (accused) appearing before Court. It is against these orders that the petitioner approached this Court seeking the aid of its inherent jurisdiction. 5. As earlier stated the offence involved in the case is one punishable under section 420 of the Indian Penal Code. It is an offence which is compoundable by the person cheated, of course, with the permission of Court. It is against these orders that the petitioner approached this Court seeking the aid of its inherent jurisdiction. 5. As earlier stated the offence involved in the case is one punishable under section 420 of the Indian Penal Code. It is an offence which is compoundable by the person cheated, of course, with the permission of Court. Ordinarily when the affected parties have decided to compound the matter between themselves permission required from the Court will be refused only in appropriate cases when public interest or ends of justice demand the same. In this case there is absolutely nothing indicating that it may not be desirable in the interest of justice to accord permission to compound the offence. What was involved between the parties was only a money transaction. The affected person received the amount and decided to settle the matter. There is nothing to indicate that the compromise was to defeat the purpose of law. Normally in such a case Courts will only be inclined to accord permission. 6. The very existence of the Courts is for dispensation of justice. The process of Courts should not be used for harassment of litigants. The insistence on the appearance of parties before Court need be only if it becomes absolutely necessary for some purpose. Courts are entitled to compel the appearance of the accused. But such insistance should not be for the mere pleasure of the accused being seen in the dock. Sometime his presence may be absolutely essential, say for instance, for questioning him or for himself being identified by witnesses. Insistence on his appearance in such cases may be alright. To insist on his appearance on a day when his appearance has nothing to do with the progress of the case will only result in unnecessary harassment, especially when he has some inconvenience and his Counsel is prepared to represent him. In this case that is what actually happened. The petitioner who is the accused before the Magistrate is already in Switzerland. Even if he wanted he was not in a position to come over to India and appear before the Magistrate because on the requisition of the Magistrate himself his passport was impounded by the concerned authorities. The Magistrate ought to have realised the fact that under such circumstances appearance of the accused before him was rather an impossibility. Even if he wanted he was not in a position to come over to India and appear before the Magistrate because on the requisition of the Magistrate himself his passport was impounded by the concerned authorities. The Magistrate ought to have realised the fact that under such circumstances appearance of the accused before him was rather an impossibility. One could only enjoy sadistic pleasure by insisting on an unnecessary impossibility and penalising a person for not complying with such a condition. 7. The provisions of the Criminal Procedure Code give ample discretion to the Courts in the matter of exempting the accused from personal appearance in appropriate cases. There is section 205(1) which says that the Magistrate can dispense with personal attendance of the accused and permit him to appear by his pleader if he sees reason to do so. Even though ordinarily in a criminal case evidence has to be recorded in the presence of the accused, section 273 of the Criminal Procedure Code says that in appropriate cases the personal appearance of the accused could be dispensed with and evidence could be recorded in the presence of the pleader. So also there is section 317 which says that if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before Court is not necessary in the interest of justice, the Judge or Magistrate could dispense with the personal attendance of the accused and proceed with the enquiry or trial in his absence. 8. This aspect was considered in Dinesan v. Baby Dinesan v. Baby (1981) K.L.T. (S.N.) 65, and Justice Narendran held: “The scheme of the provisions of sections 205 , 273 and 317 of the Code is that a Magistrate has to dispense with the personal appearance of the accused and allow him to appear by his pleader except when the personal attendance of the accused before Court is necessary in the interests of justice. It cannot be said that the personal attendance of the accused in Court is necessary on a day when the case is adjourned on the request of the complainant. At any rate in the interests of justice it cannot be insisted that he should attend the Court on that day. It cannot be said that the personal attendance of the accused in Court is necessary on a day when the case is adjourned on the request of the complainant. At any rate in the interests of justice it cannot be insisted that he should attend the Court on that day. In that case if the accused applies for permission to appear by his pleader, a Magistrate has no power under the Code to reject that application. Rejection of the application will only result in injustice. Courts are there to mete out justice and not to prosecute the poor citizen who happens to be a party in a case. The salutory provisions permitting the accused to appear by his pleader are there in the Code to help the accused and not to harass him.” Helan Rubber Industries v. State Helan Rubber Industries v. State (1972) K.L.T. 794, is another decision in which this aspect came up for consideration. The principles laid down in that decision are: “By the joint operation of section 205(1) and sub- section (1) of section 540-A and section 353 of the Code, a Magistrate is entitled to exercise jurisdiction to exempt the accused from personal attendance both at the time of issuing summons and during enquiry or trial. These salutary provisions have been incorporated in the Code to be resorted to, to help the accused and not to deny them their benefits. The refusal to extend to the accused the benefits of the sections in appropriate cases is to deny them justice. Courts should try to dispense justice more than law. The dignity of Courts will be preserved by being generous and liberal towards parties generally but harsh and even cruel when justice demands it. The lower Courts should not tend the derive a sadistic pleasure in making large number of accused to crowed the Court without sufficient cause and make them wait from morning till evening. The lower Courts should also guard against any tendency which leads to harassment of the parties coming before them. In cases where the Court finds that the appearance of the accused is not necessary for a disposal of the case and where an Advocate undertakes on behalf of the accused to be present in Court, the Courts should be liberal in exempting the accused from personal attendance. In cases where the Court finds that the appearance of the accused is not necessary for a disposal of the case and where an Advocate undertakes on behalf of the accused to be present in Court, the Courts should be liberal in exempting the accused from personal attendance. It is useful to remember that an Advocate before Court is a responsible officer and when he undertakes on behalf of an accused to be present in Court it has to be given due weight. Courts should be generous in extending the benefits of sections 205 , 353 and 540-A to the accused. III cases which are grievous in nature involving moral turpitude, personal attendance in the rule. But in cases which are technical in nature, which do not involve moral turpitude and where the sentence is only fine, exemption should be the rule. The Courts should insist upon the appearance of the accused only when it is his interest to appear or when the Court feels that his presence is necessary for effective disposal of the case. When the accused are women, labourers wage earners and other busy men, Courts should as a rule grant exemption from personal attendance. Courts should see that undue harassment is not caused to the accused appearing before them. The above observations are subject to the fact that in special cases where the Courts feel presence of the accused necessary, it should be insisted upon.” Therefore, it follows that the Magistrate could and ought to have exempted the petitioner from personal appearance and considered all the petitions favourably instead of insisting on the impossibility of the petitioner coming all the way from Switzerland and appearing before Court. His appearance before Court, if at all was needed, was only for the purpose of compounding the offence. For that purpose it was not at all necessary to insist on the presence of the accused. His Counsel could have very well represented him before Court. Where a particular offence is compoundable by a particular person it is not even necessary for the Court to insist on a joint petition by that person and the accused. For that purpose it was not at all necessary to insist on the presence of the accused. His Counsel could have very well represented him before Court. Where a particular offence is compoundable by a particular person it is not even necessary for the Court to insist on a joint petition by that person and the accused. Even if the person who is entitled to compound the offence by himself files a petition before Court stating that the matter has been compounded and the case may be closed the Court will be bound to accept the same and close the case except in appropriate cases where it is felt that permission to compound the offence will have to be refused.. 9. Suravi Mukherjee v. State Suravi Mukherjee v. State A.I.R. 1965 Cal. 469, dealt with a case where a compromise petition was filed by the complainant before Court on 15.4.1964 duly signed by her and her pleader. That was a case relating to offence punishable under sections 354 , 379 and 323 of the Indian Penal Code. The compromise petition was put up for consideration before Court on 22.4.1964 and was rejected by the Magistrate on the ground that the offences under sections 379 and 354 of the Indian Penal Code were not compoundable. One of the accused against whom only a case under section 323 of the Indian Penal Code was made out was absent on that date. The Magistrate issued a warrant of arrest against him. Submission was made on behalf of that accused that under the impression that the matter has been compromised she did not think it fit to appear before Court. That contention was negatived by the magistrate. The High Court held: “The compromise against the accused S was effective from the date of its filing i.e., 15.4.1964 and the reopening of the case against her on 22.4.1964 was unwarranted by law. Hence the order of the Magistrate issuing warrant of arrest against her could not be allowed to stand but the compromise being not operative against the accused charged with non-compoundable offences the case should proceed against them.” In that case it was further held that as soon as the offence was compounded by the complainant it operated as an acquittal even if no acquittal order was recorded. Even though it is not necessary in this case to go to that extent, it is clear that the presence of the accused ought not have been insisted for the purpose of passing favourable orders on the petitions filed before the Magistrate. I could have understood if the Magistrate rejected the petitions on the ground that the case before him was one in which permission of Court for compounding could not be granted in public interest. The Magistrate has no such case and there cannot be such a case also. 10. The action of the Magistrate evidently amounts to abuse of the process of Court which has resulted in miscarriage of justice. The petition is, therefore, allowed and the impugned orders are set aside. The Magistrate will take all the petitions to file, consider them on the merits and pass appropriate orders according to law in the light of what is stated above. Petition allowed.